thought of as a testimony rehearsal or a dry run. In a
testimony simulation, the witness responds to the types
of direct and cross-examination questioning that their
attorney expects them to experience in the courtroom.
Ideally, the direct examination questioning in the testi-
mony simulation is conducted by the attorney who will
question the witness in court, while an unfamiliar
attorney conducts the cross-examination testimony.
Although many witnesses are apprehensive about
testifying and unsure about how well they will be able
to testify, some witnesses are extremely eager to tes-
tify and overly confident about how likely jurors are
to believe their testimony. In these instances, witness
education can be used to induce a realistic amount of
anxiety in the witness. For example, some criminal
defendants want to testify in their defense because
they feel that they can simply explain or argue away
all the evidence that the prosecution has amassed
against them. These defendants see testimony as an
opportunity to tell their story, the way they see it, and
tend to argue and become defensive in response to
challenging cross-examination questions. Testimony
simulations can be used with overconfident witnesses
to provide a realistic example of what it is like to be
cross-examined and to show them that their “I’m
right, you’re wrong” approach to testifying is not
likely to be persuasive in the courtroom.Testimony Delivery Skills
Testimony delivery skills are the verbal and nonverbal
behaviors that witnesses use to create a desired
impression on those observing their testimony, includ-
ing jurors, judges, and attorneys. Although the type of
impression that an attorney wants a witness to create
can vary considerably from witness to witness, rang-
ing from confident and in control (e.g., a falsely
accused executive) to indignant and upset (e.g., a sex-
ual harassment victim who has been persecuted for
coming forward), all attorneys want their witnesses to
appear honest and to be believed. Most testimony
delivery skills are intended to help witnesses appear
honest and believable.
Critics of witness preparation may ask why honest
witnesses need to be taught to appear honest. Nearly, all
cases that go to trial or come close to going to trial
involve multiple versions of the same event or set of
events. Witnesses disagree about what happened, who
did what, when they did it, and why. When this happens
in the courtroom, jurors, judges, and other decisionmakers must decide which witnesses to believe.
Unfortunately, people are not very accurate at telling
when other people are being honest and when they are
being deceitful. Indeed, years of research has shown
that most laypeople have no better than chance accu-
racy at detecting deception. One reason why most
people are inaccurate lie detectors is that they base their
inferences about deceitfulness on behaviors that are
not clearly associated with lying. The most common
layperson beliefs about deceitfulness are that liars fidg-
et, shift their posture, make poor eye contact, stammer,
and frequently say “uh” and “um.” None of these
behaviors are consistent indicators of lying, although
they are all signs of nervousness. Honest witnesses who
show these and other signs of nervousness while testi-
fying are at a risk of being seen as deceitful simply
because they are nervous, flustered, or uneasy. There
are many reasons why honest witnesses appear nervous
while testifying, and witness preparation is used to help
honest but nervous witnesses avoid looking like liars in
the eyes of jurors.
The most important testimony delivery skill for wit-
nesses to master is to be completely honest. Witnesses
who attempt to present only selected pieces of the story
often get called on the incompleteness of their answers
and end up facing the types of aggressive and challeng-
ing cross-examination questions from opposing attor-
neys that tend to elicit behavioral signs of nervousness.
Moreover, witnesses who are caught being less than
100% forthcoming in one area of their testimony will
likely have all their testimony seen as dishonest, regard-
less of the quality of their other testimony delivery
skills. One witness preparation technique that is used to
help witnesses avoid appearing deceitful in their testi-
mony is to have them review all previous statements,
testimony (e.g., deposition, pretrial hearing), and other
case material related to the case. Witnesses often give
statements and deposition testimony many months or
even years before trial, and reviewing this material
allows witnesses to be completely consistent in their
story. The merit of this technique is based on the
assumption that the witnesses were completely honest
in their previous statements and testimony. Although
there is a risk that reviewing earlier statements and tes-
timony can create a false sense of confidence or accu-
racy in witnesses, being uncertain about the content of
previous testimony makes honest witnesses vulnerable
to appearing unreliable simply because they do not
remember relatively minor details of their previous
statements.Witness Preparation——— 867W-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 867